HOW TO GET A GREEN CARD THROUGH MARRIAGE

One of the fastest ways to get a green card is through a U.S. citizen spouse (husband or wife). Under U.S. immigration law, a spouse is considered an immediate relative. Because the immigrant spouse is considered an immediate relative there is no priority date backlog and an immigrant visa is always available.

STEP 1 - APPLYING FOR A GREEN CARD THROUGH A U.S. CITIZEN SPOUSE

There are two ways of obtaining a green card through a U.S. citizen spouse; if the immigrant spouse is in the United States they use Form I-485 adjustment of status or if the immigrant spouse is abroad they must go through Consular Processing and use form DS-230. Below we will first talk about applying for a green card in the United States and then Consular Processing.

When the immigrant spouse in the United States the main forms used to apply for a green card through a U.S. citizen spouse are the following: I-130 petition for alien relative, the I-864 affidavit of support, the I-485 application to adjust status, the G-325A biographical information and the I-693 medical exam (in a sealed envelope from a qualified doctor called a Civil Surgeon). Additional forms include, the I-765 application for employment authorization and the I-131 application for advanced parole/travel permission.

I-130 Petition for Alien Relative - The United States citizen spouse files the form I-130 petition for alien relative with the U.S. Citizenship and Immigration Services (USCIS) to establish the immediate relative relationship to the immigrant spouse who wants to immigrate to the United Sates.

In order to prove that the petitioner is a U.S. citizen, one of the following documents should be included with the I-130:

U.S. Birth Certificate

U.S. Passport

U.S. Certificate of Naturalization

U.S. Report of Birth Abroad

I-864 Affidavit of Support - The form I-864 affidavit of support is required by the U.S. Citizen spouse (called the "sponsor") to prove that the immigrant spouse will have the financial support so as not to be a public charge. The sponsor must demonstrate income that meets the poverty guideline threshold of at least 125% for the household size. The household size includes the immigrant they are sponsoring and other immigrants they have sponsored in the past and all dependants of the sponsor. The guidelines can be found on form I-864P. If the sponsor does not make enough income a co-sponsor may be used. In some cases the sponsor's assets can be counted using a formula of five times the deficit of the annual income and the immigrant spouse's income may also be used if the couple has been living together for at least six months.

The sponsors must submit the following proof with their I-864 affidavit of support:

Latest Federal income tax return with W-2's and/or 1099's or an Internal Revenue Service (IRS) issued transcript of the latest federal income tax return (a sponsor may also submit the tax returns or transcripts for the second and third most recent tax years if these addition tax returns help prove the household income at above the poverty guideline threshold,

Evidence of current employment/income such as recent pay-checks and/or pay-stubs and/or pay statements,

Proof of eligibility as either a U.S. citizen or legal permanent resident such as a copy of the sponsors U.S. birth certificate or U.S. passport or permanent resident card/green card.

If the sponsor is using the income of other persons in their household or dependents to qualify as a sponsor they must also submit a separate Form I-864A, contract between sponsor and household member along with the same proofs above described.

I-485 Application to Adjust Status - The I-485 form is used for the adjustment of status paperwork. Adjustment of status is the request by the immigrant spouse to apply for and obtain permanent resident status while in the U.S. The I-485 form requests information about immigrant spouse's lawful status in the U.S. and any prior criminal or immigration problems.

There are many requirements the immigrant spouse must meet in order to qualify for adjustment of status. One of the basic requirements is entering the U.S. lawfully and being inspected by an immigration officer on entry. If the immigrant spouse is ineligible to adjust within the U.S. because he or she last entered without inspection they must apply for an I-601 extreme hardship waiver.

Examples:

A foreign national enters the U.S. with a valid B-2 visitor visa and is allowed this status for six months. He travels in the U.S. during the six months but over stays. 1 year later he marries a U.S. citizen and wants to apply for a green card based on that relationship. Is the immigrant spouse eligible to apply for I-485 adjustment of status?

YES - while the immigrant spouse is not in lawful status he is still eligible to adjust because he is applying as an immediate relative.

A foreign national crosses the border without inspection and stays in the U.S. for 1 year and marries a U.S. citizen. The immigrant spouse wants to apply for a green card based on that relationship. Is the foreign spouse eligible to apply for I-485 adjustment of status?

NO - there is no exception to the bar to adjustment of status for someone who entered the U.S. without inspection. If the foreign national wants to apply for a green card he must apply for an I-601 extreme hardship waiver.

Another criterion the immigrant spouse must meet in order to qualify for adjustment of status is proof of a bona fide husband and wife relationship. Some evidence that shows the couple is married and living together include the following:

Marriage certificate,

Birth certificates of any children of the couple,

Joint residential lease or home ownership,

Joint bank account statements,

Joint utility bills,

Joint insurance policies,

Joint memberships,

Other joint assets.

Please note not all the above document are required but may help prove the case. We urge you to consult with a qualified immigration attorney before submitting an adjustment of status application and discussing the best strategies on presenting evidence to the immigration services.

G-325A Biographic Information - The form G-325A is a biographic information document used to collect important information of the U.S. citizen and immigrant spouse. The history and current information required includes all names used, dates and places of birth, residences, marriages/divorces, employment and parents information.

I-693 Medical Exam - Form I-693 is the medical examination report of the immigrant spouse that is completed by a designated civil surgeon. The purpose of the examination is to establish that the foreign spouse is not inadmissible to the United States on public health grounds. The medical exam is conducted by a civil surgeon which is a doctor authorized by the immigration services. The results of the medical exam must remain sealed when submitting them to the immigration services and the exam results remain valid for 12 months.

I-765 Application for Employment Authorization - Form I-765 is used to apply for permission to work while the green card case is pending. If the application is approved the immigrant spouse will receive an Employment Authorization Card. This card is generally valid for any employment position including self-employment. The card is usually issued within 90 days of filing.

The following is some of the evidence submitted with form I-765

A copy of the immigrant spouse's passport and

A copy of the immigrant spouse's current and/or past Visa and entry record

I-131 - Application for Advanced Parole - Form I-131 is used for travel permission while the green card case is pending. If approved the immigrant spouse may receive multiple advanced parole documents that may be used for entry back into the United States. Recently immigration services have sometimes added the advanced parole to the Employment Authorization Card instead of a separate document but not always. The advanced parole is usually issued within 120 days of filing.

Please note if the immigrant spouse is out of status/has unlawful presence DO NOT TRAVEL OUTSIDE THE U.S. even with an approved advance parole. Unlawful presence of 6 months or more will cause the immigrant spouse to be inadmissible if traveling outside the U.S., even with an approved advanced parole and may be barred from entering the United States and even if allowed entry into the U.S. with the advanced parole permission may cause the spouse to be barred from receiving a green card. Also Traveling without an approved advance parole could cause the immigration services to determine the immigrant spouse has abandoned the green card case. We urge you to consult with a qualified immigration attorney before travelling outside the U.S. and/or applying for advance parole, to determine your eligibility.

The following is some of the evidence submitted with form I-131

A copy of the immigrant spouse's passport and

A copy of the immigrant spouse's current and/or past Visa and entry record

STEP 2 - WHAT TO EXPECT ONCE EVERYTHING IS SUBMITTED

After all the forms and evidence are submitted along with six passport pictures of the immigrant spouse and four passport pictures of the U.S. citizen spouse along with the correct filing fees, receipt notices will be mailed in about 2-4 weeks. Shortly after the receipt notices arrive, the biometrics appointment notice should arrive. The biometrics appointment is for the immigrant spouse to go to get digital fingerprints, photographs and a signature taken at a local immigration services office or application support center.

As mentioned above the Employment Authorization usually arrives within 90 days of submitting the case and the Advanced Parole usually arrives within 120 days.

The next step is waiting for the green card interview notice to arrive from the immigration services. The processing time to get the green card interview does change depending on the back log of the immigration services office but usually it is within one year of submitting the case and could be as fast as 2 months from submitting the case. Both the U.S. citizen and immigrant spouse must attend the green card interview
(Please see my article on what happens at the green card interview and how to prepare).

STEP 3 - THE GREEN CARD INTERVIEW

The purpose of the green card interview is to (a) confirm that the marriage is real, (b) that the immigrant spouse entered legally, (c) that there is no past criminal or immigration bars and (d) that the sponsor/co-sponsor are eligible. The green card interview notice will list what to bring to the interview.

During the interview the immigration officer asks questions about the details of the relationship and also requests evidence of the relationship and sponsor's eligibility. Such evidence could include the following:

In some cases the immigration officer may separate the couple to determine if there are any discrepancies between the couple's answers or may request that the couple come in for second interview and ask them questions separately then. This second interview is also called a Stokes or fraud interview because the officer is determining if the marriage is fraudulent and because the guidelines of this interview stem from the Stokes case. For more information on the second interview (Please see my article on What to expect at a Second interview and how to prepare or contact me for a free consultation at 212-804-5770).

At the end of the interview the immigration officer will let the couple now if there is anything missing. If there is something missing the couple will be issued a letter informing them what to bring and when to bring it or mail it by, usually within a specific time frame. If there is nothing missing the immigration officer will review the case and send the decision in about a month. If the case is approved the permanent residence card/green card will be issued shortly after the approval notice. If the marriage is less than 2 years at the time of approval, the foreign spouse will receive a conditional permanent resident card/green card. The conditional green card will expire in two years and the foreign spouse must submit within 90 days of the expiration a petition to remove conditions on residence using form I-751. For more information on removing conditions on residence (Please see my article on How to remove conditions on permanent residence or contact me for a free consultation at 212-804-5770).

PETITION AND APPLICATIONS FOR SPOUSE LIVING ABROAD - U.S. CONSULAR PROCESSING

If the immigrant spouse is not in the United States, the U.S. citizen spouse must first file the I-130 petition for alien relative at the national benefits center or if the U.S. citizen spouse is also living abroad they would file the petition at the U.S. consulate. Once the I-130 petition is approved, an Immigrant Visa (IV) Application processing fee and the Affidavit of Support (AOS) fee is generated from the National Visa Center (NVC).

When these fees are paid the NVC will generate cover sheets for each and specific information and documentation is required to proof the relationship, background and sponsors eligibility. This proof must be submitted to the NVC at an address designated on the cover sheet along with Form I-864 Affidavit of Support and Form DS-230.

The NVC will schedule the immigrant visa appointment interview at the U.S. consulate for the immigrant spouse at their home country. Prior to the immigration appointment, the immigrant spouse must request a police record to be sent directly to the U.S. consulate at their home country and must get a medical examination by a doctor designated by the U.S. consulate of their home country.

Once the case is approved an immigrant visa for admission to the United States as a permanent resident is issued. The immigrant spouse usually has six months to enter the United States and shows the immigrant visa at the port of entry. A stamp is placed in the passport as evidence of permanent residence status until the permanent resident card/green card arrives in the mail. The green card usually arrives in the mail about a month later.